Underlying claim involves planning schemes under Victoria’s Planning and Environment Act
The Australian Federal Court has dismissed an application for a judicial review of its registrar’s decision refusing to accept for filing an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) (OA), accompanied by a statement of claim (SOC).
In the SOC, the applicant in Khan v Registrar of the Federal Court of Australia [2026] FCA 1115 claimed that residents and owners in the residential area where he lived were breaking the law by using the development in a manner contravening the relevant local council planning scheme under the Planning and Environment Act 1987 (Vic) (PE Act).
Specifically, the applicant alleged that:
Through the OA under s 39B of the Judiciary Act, the applicant sought:
The OA referred to the Constitution or the Australia Act, which the SOC did not mention.
The respondent, a Federal Court registrar, refused to accept the originating application for filing under r 2.26 of the Federal Court Rules 2011 (Cth).
In a judicial review application assailing the registrar’s decision, the applicant asserted that the registrar erred because he did not consider the fact that the substantive claim in his OA and SOC also raised s 2 of the Australia Act 1986 (Cth).
When asked why he wanted to file his OA and SOC before the Federal Court despite the claims being made under Victorian legislation, the applicant said Victoria’s courts had previously rejected his similar claims on the merits.
The Federal Court dismissed the application. According to the court, quashing the registrar’s decision and remitting the matter of the filing of the OA and the SOC to the registrar for reconsideration would be futile.
To the extent that the s 39B OA referred to the Constitution, the court found that the respondent registrar addressed this issue, without any complaint raised regarding the registrar’s manner of ruling on this matter.
The court acknowledged that the applicant sought to support jurisdiction under s 39B of the Judiciary Act on the ground that his proposed proceeding concerned s 2 of the Australia Act, a “matter … arising under” a law of the Parliament.
The Federal Court accepted that the registrar might have committed a legal error by failing to address whether the court would have jurisdiction under s 39B of the Judiciary Act in connection with s 2 of the Australia Act.
However, even if the legal error had not happened, the court did not consider the error material because there was no realistic possibility that the decision would have been different.
The court noted that there was no controversy and no “matter” arising under s 2 of the Australia Act regarding Victoria’s use of its legislative power to pass the PE Act, and that the subject matter’s controversy did not “owe its existence to Commonwealth legislation.”
Here are some other recent decisions by the Federal Court of Australia.
Noting United Petroleum Pty Ltd’s “unsuccessful attempts to plead a viable case,” the Federal Court issued a 4 August 2026 decision denying its interlocutory application for leave to file a proposed further amended statement of claim and a further amended originating application.
In a proceeding involving the Legal Practice Board of Western Australia’s refusal to renew the respondent’s legal practising certificate, the Federal Court made a 4 August 2026 decision affirming a sequestration order over his estate, such that he was a bankrupt.
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